Muller v. Reagh

California Court of Appeal May 5, 1959 No. Civ. 18272Published

Before: Bray

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Holding. The court held that trial expenses are not recoverable as costs on appeal, that trial courts have discretion to disallow costs for convenience, and that a claimant must provide proof of actual out-of-pocket expenditures to recover costs under Code of Civil Procedure section 1034.

Issues

Whether trial court expenses are recoverable as costs on appeal under Rule 26.
Whether a trial court has discretion to disallow costs incurred for a party's convenience.
Whether a claimant must prove actual out-of-pocket expenditures to recover costs on appeal.
Whether the trial court has authority to reduce costs claimed in a memorandum of costs.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Costs on appeal do not include expenses incurred at the trial of the case.”

“The purpose of section 1034 is not to pay a successful litigant for his own work, but to reimburse him for his actual out-of-pocket payment for the type of costs allowed.”

“The burden of proving the costs asked for is on the claimant.”

BRAY, P. J.

Successful on appeal in

Muller

Reagh

(1957), 150 Cal.App.2d 99 [309 P.2d 826], plaintiff filed a memorandum of costs on appeal. Defendants moved to strike the whole and all parts thereof. After a hearing the court denied and struck out the items hereafter discussed, reducing the amount from $262—sought by plaintiff—to $91.50, which the court allowed. Plaintiff appeals on a settled statement.

Items Denied

These items will be referred to herein by their numbers in the cost bill. Item 1: One day’s jury fees, $36. Item 2: One

[153]

day’s reporter’s fees, $20. Item 5: Jury mileage, $22. These sums were advanced by plaintiff for the first day’s trial of the above action. On that day the superior court transferred the ease to the municipal court, and the trial ended. In

Muller

Reagh, supra,

it was held that the transfer was. erroneous. Plaintiff contends that therefore he is entitled to recover the above items as costs on appeal. Costs on appeal are governed by rule 26, Rules on Appeal, and the items allowable are set forth in rule 26(c). They include none of the above mentioned charges. Costs on appeal do not include expenses incurred at the trial of the case.

(Monson

Fischer

(1933), 219 Cal. 290 [26 P.2d 6] ; see also

Rosenfield

Vosper

(1943), 57 Cal.App.2d 605, 608 [134 P.2d 529, 135 P.2d 579]; Code Civ. Proc., § 1034.)

Item 4: Affidavit of service, order extending time, $.50. (Apparently this refers to the notary’s fee.) Rule 26(e) includes as recoverable costs on appeal “notary fees.” The trial court allowed notary’s fees in seven instances, but felt that it would be unfair to charge a party with an expense incurred solely for the convenience of his adversary. Such an item is within the court’s discretion to allow or disallow. In

Muller v. Reagh

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BRAY, P. J.

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